Review of the ecclesiastical court judgments during October 2019
October’s consistory court judgments have included:
At the meeting of the Privy Council at Buckingham Palace on 8 October was an Order detailing the closure of the St Edward The Confessor Churchyard, Burgess Hill, West Sussex; this is reviewed below.
This summary also includes links to other posts relating to ecclesiastical law.
Re Great Ness Cemetery  ECC Lic 8 When the petitioner’s mother’s body was interred in the cemetery in 1989, he obtained rights of burial for himself and his wife in the adjoining plot . In 2018, the burial authority, Shropshire County Council, erroneously dug a grave in the plot reserved by the petitioner; this mistake was only discovered on the morning of the intended burial in that plot. Rather than insist that the burial authority stopped the funeral, the petitioner, “out of compassion for the family concerned”, allowed the burial to take place in the plot he had reserved. As a consequence, however, it was not then not possible to satisfy the petitioner’s desire for burial in a plot adjoining that of his mother, since the council no longer provided for plots to be reserved .
The petitioner then applied for a faculty to have his mother’s body exhumed with a view to re-interment in a burial chamber on the petitioner’s farm land; the chamber was a secure structure, and capable of accommodating the bodies of the petitioner and his wife after their deaths. It would then be completely sealed by the family. However, the site of the chamber is not on consecrated land, although it was intended that re-interment should be conducted under the supervision of the vicar of Great Ness with the chamber being blessed before the interment. However, the Chancellor noted that this would not have the same effect as consecration, and consequently the plot would remain outwith the jurisdiction of the consistory court .
Citing his judgment in Re Tixall Road Cemetery Stafford  Lichfield Cons Ct, Chancellor Eyre commented that “it is not sufficient for the court to be satisfied that exhumation is justified. Appropriate arrangements must be in place for the safe custody and protection of the remains once they have been exhumed” . He cited Re Blagdon Cemetery  Fam 299 on the approach which was to be taken if the proposed re-interment was to be in unconsecrated land which was not part of a local authority cemetery, viz.
“. … reinterment in unconsecrated ground which is not in a local authority cemetery is a different matter. No general inference of the suitability for reinterment in such land can properly be drawn by the consistory court. Questions about proper care of the new grave in the future and the prospects for visiting access by future generations would need to be addressed by those involved in such cases, and in turn examined with care by the consistory court in deciding whether or not to exercise its discretion to grant a faculty for exhumation.”
Also relevant was Re Crigglestone Cemetery  Ecc Lee 3 and Re St Thomas, Worting  Ecc Win 4. The Chancellor was satisfied that the circumstances were exceptional such as to justify the exhumation of the petitioner’s mother’s remains from the existing grave  although he had “considerably more cause for reflection in respect of the proposed arrangements for the reinterment of [her] remains” . However, he was “satisfied that on the very particular facts of this case there is sufficient basis for concluding that the remains even when interred on private land will be in a secure and seemly setting and an adequate assurance that those arrangements will continue” . Faculty granted. [Re Great Ness Cemetery  ECC Lic 8] [Back] [Top].
Re Cheshunt Cemetery (No. 3)  ECC StA 2 After the death of the petitioner’s 2-day old son, he was taken to Birmingham Hospital for an autopsy, and once the body had been returned to the petitioners, it was cremated on 2 February 2004; on 3 June 2004, the cremated remains were interred in an identified plot in consecrated ground in Cheshunt Cemetery . The Petitioners were atheists, and had been disturbed when they discovered that their baby’s cremated remains had been interred in a consecrated part of the cemetery, when there was an adjacent unconsecrated area available . Neither the funeral directors nor the burial authority’s officer who dealt with the interment had explained the nature of each area of land.
The Chancellor found that from the outset there was a fundamental mistake of fact on the part of the petitioners as to the nature of the plot in which they agreed to have the ashes interred. The question then arises what would the petitioners have done had they known the full facts and of the various options available to them, and in particular that [the] ashes could have been just as easily interred in unconsecrated land? . He said:
“. In my judgement, as I have made clear above, mistake has occurred. In the first place the mistake relates to the fact that petitioners, not having been told, did not realise that they could have had a non-religious funeral for their son. This was compounded by their not being told that there were consecrated and unconsecrated areas adjoining each other in the cemetery, and what the differences between such were. In turn this meant that they could not and did not make an informed decision about where they wished [the] ashes to be interred”.
“. The mistake was similar to that postulated by the Consistory Court in In Re Hither Green Cemetery  ECC Swk 3, where Petchey Ch stated: “There is however another category of mistake which arises when a person does not know that the ground in which the remains have been interred is consecrated. If he or she had known, the person concerned would not have organised the burial in the consecrated ground.
He was referred to the recent decision of In The Matter of a Petition by Keith and Ann Hinkley 2019 ECC Swk 1 in which Petchey Ch expressed the view that: “Whenever a child predeceases his or her parents, difficult issues may arise as to the appropriate arrangements in respect of his or her remains,” and he went on to say that in such circumstances, the Consistory Court should be prepared to show “appropriate flexibility.” The facts of that case were different from those in the matter before me, but the Chancellor fully endorsed the sentiments therein expressed .
Significant is the judicial history of the case  to  and the position adopted by the petitioners at each stage:
- By an earlier petition presented on 8 December 2017, Re Cheshunt Cemetery (No. 2)  ECC StA 2, the petitioners sought to exhume the ashes because they were intending to move, first to Royston, and after a few years, perhaps to Cyprus. They wanted to keep the ashes at home and possibly take them with them to wherever they settled. The petition was refused on the ground of non-portability of ashes .
- on 26 October 2018, the Dean of the Court of Arches granted permission to appeal on the grounds of decisions of the Deputy Chancellor Re Cheshunt Cemetery (No. 2)  ECC StA 2. However, “the Dean went on to note that the petitioners, who had raised the issue of mistake for the first time in any depth at the Consistory Court hearing, rather than on the papers, were effectively seeking to amend the basis of petition through the appeal process” . As a consequence, the fresh petition (the instant case) was presented.
The Chancellor concluded: “In these very particular circumstances, I am satisfied that this is a case where I can take an exceptional course, and exercise my discretion so as to authorise the exhumation of the cremated remains … so that they may be reinterred in unconsecrated ground but in the same cemetery” . Importantly, as part of the conditions of the faculty, “The reinterment be forthwith, in unconsecrated ground in the same cemetery. The petitioners must give a written undertaking to this effect as a condition of this faculty being issued” [32(2)].o [Re Cheshunt Cemetery (No. 3)  ECC StA 2] [Back] [Top]
[Note that despite its citation, Re Cheshunt Cemetery (No. 1)  ECC StA 1 does not relate to the instant case; the circumstances, however, were similar and arose since the Petitioners, who were atheists, had no input into the funeral arrangements nor contact with the funeral director, all of the funeral and burial arrangements having been made by former parents-in-law].
Re St. Bartholomew Failand  ECC B&W 1 The Rector and churchwardens sought to replace the gravel between the churchyard gate and the main entrance of the church with stone to match the stonework of the church. The Diocesan Advisory Committee advised the Chancellor that Forest of Dean or Welsh Pennant stone should be used, whereas the Rector and churchwardens wished to use the less expensive Indian sandstone.
After considering further advice from the church architect and a member of the DAC, the Chancellor was concerned that “Indian sandstone blends less comfortably with the weathered stone of the church”. The relative costs of different types of replacement stone are considered on Page 2 of the judgment. The use of mixed colour Pennant stone would result in the total cost of the project increasing from £1,650.00 to £2,946.00 (inc VAT). The Chancellor commented: “this may be a steep increase, but it remains within the range of affordability” – the church had an available balance of funds of £37,000.00, and “while there will doubtless be other calls upon the £37,000.00, a plea of poverty cannot convincingly be made here…”. He therefore granted a faculty subject to a condition that Forest of Dean or Welsh Pennant stone should be used. [Re St. Bartholomew Failand  ECC B&W 1][Back] [Top]
Designation of closed churchyard
St Edward The Confessor Churchyard, Burgess Hill Included in the meeting of the Privy Council at Buckingham Palace on 8 October was an Order detailing the closure of the St Edward The Confessor Churchyard, Burgess Hill. The item is self-explanatory and is reproduced below:
At the Court at Buckingham Palace
THE 8th DAY OF OCTOBER 2019
PRESENT, THE QUEEN’S MOST EXCELLENT MAJESTY IN COUNCIL
The Secretary of State for Justice, after giving ten days’ notice of his intention to do so, has, under the Burial Act 1853 as amended, made representation to Her Majesty in Council that, subject to the exception below, burials should be discontinued in St Edward The Confessor Churchyard, Burgess Hill, West Sussex (as shown hatched on the plan annexed hereto).
The exceptions are:-
(a) in any vault or walled grave in the churchyard, burial may be allowed but every coffin in such vault or grave must be separately enclosed by stonework or brick work properly cemented;
(b) in any existing earthen grave in the churchyard, the burial may be allowed of the body of any member of the family of the person or persons previously buried in that grave, but no part of the coffin containing the body shall be less than one metre below the level of the surface of the ground adjoining the grave; and
(c) in any grave space in which no interment has previously taken place, the burial may be allowed of any person for whom, or any member of the family for which that grave space has been reserved and appropriated, with the exclusive right of burial there, but no part of the coffin containing the body shall be less than one metre below the level of the surface of the ground adjoining the grave.
Her Majesty in Council is pleased to give Notice of these representations and to order that they be taken into consideration by a Committee of the Privy Council on 19th November 2019.
And Her Majesty is further pleased to direct that this Order should be published in the London Gazette, and that copies of it should be fixed on the doors of the Churches or Chapels of the above mentioned places, or displayed conspicuously inside them, for one month before 19th November 2019.
Re St. Paul Quarndon  ECC Der 4 The petitioner sought to replace a memorial stone, commemorating her father who had died in 1999 with a new black granite stone commemorating both parents, the second parent having died recently . In 1999, permission for a black granite stone had been refused .
On the grounds that the specification was outside the diocesan churchyard regulations, the parish priest and Parochial Church Council objected to the petition, notwithstanding that there were several black granite memorials already in the churchyard [2,3]. The Chancellor reviewed the law of churchyards and in particular that relating to headstones and memorials  to . He emphasized:
- although certain individuals have ‘a right of burial’, there is no corresponding right to erect a memorial; permission is always required 
- Churchyard Regulations exist principally for a different purpose. If the proposed memorial is within the regulations, the parish priest may give permission for the introduction of the headstone However … if the proposed memorial does not meet the criterial in the Regulations, the Clergy have no authority to give permission [12,13].
The specific aspects of the case were then considered  to , and in particular:
- the petitioner pointed out that not only were there black granite stones erected, prior to their father’s death, the latest in 1995, but others had appeared since then – some 5 in the years between 2004 and 2013; the family assumed there must have been some relaxation of the rules .
- the Chancellor repeated that the Churchyard Regulations do not contain the PCC’s policy, but are binding on the clergy. The PCC cannot decide not to be bound by them, or in this case ‘allow’ what the family want, although it may be helpful for them to express their views on the matter. The most they can do is seek approval from the Chancellor for a variation of the Regulations, either more strict, or less strict, and seek his or her approval accordingly .
- It was apparent that previous incumbents have allowed the erection of these memorials despite the 1990 Regulations. It would in, the Chancellor’s, be unreasonable to refuse the petitioner’s family request, and would appear quite discriminatory to them and others .
The Chancellor granted the application and a black granite headstone on a base in accordance with the details submitted may be erected before 31st March 2020 . He concluded:
“. The PCC may wish to seek my approval to allowing the introduction of black granite memorials (not red or blue or other ‘odd’ colours) with polished surfaces and gilded or painted lettering, simply on the authority of their priest, rather than being obliged to require that such applications come to me. That is, they would seek a relaxation of the current Regulations. The parish priest does not have to approve every such application of course, if unhappy with the proposed size or design or inscription, but this may make her job a little easier than it is now.
As we can see in this case, where the Regulations have been frequently ignored, it is in practice almost impossible to maintain the line laid down. It is to be hoped that new Regulations will be introduced soon to make this sort of situation easier for the clergy to deal with.”
This echoes the practice adopted in the Leeds diocese for the introduction of “bespoke churchyard regulations”, reviewed here.
[Re St. Paul Quarndon  ECC Der 4] [Back] [Top]
- Electronic Communications Code and the CofE, 18 October 2019.
- Exhumation by the “nominated undertaker”, 19 October 2019.
- Restrictions on cremation ashes for jewellery – I, 4 October 2019.
- Restrictions on cremation ashes for jewellery – II, 15 October 2019.
- New CofE guidance on partial burial of remains &c, 2 October 2019.